SOLANO v. ABRENICA (1999)

 Plaintiff Ruth Solano appeals a summary judgment in favor of defendant Reynaldo Abrenica.¹  Solano sued Abrenica, her tennis teammate, for injuries she suffered when a tennis ball Abrenica served after the conclusion of a practice session struck her in the eye.   The court granted Abrenica's motion for summary judgment based on primary assumption of the risk.   Solano contends her action is not barred by primary assumption of the risk because she was no longer participating in the tennis practice when the ball Abrenica served struck her.   We agree and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

The relevant facts are undisputed.   Solano and Abrenica were teammates and members of the World Team Tennis Organization.   Just prior to the accident, they had been practicing with two other teammates on a single tennis court.   Solano and Abrenica were on one side of the net facing the other two teammates across the net.   After the four players had rallied for five to ten minutes, their team captain yelled, “Time's up.”   The four players finished their respective rallies and Solano began to pick up tennis balls near the net on the right side of the court where she had been playing.   She then began to leave the court by walking along the net toward the side of the court where Abrenica had been playing.   When she reached the center of the court, she heard Abrenica yell, “Let's practice serve.”   She turned toward Abrenica and was immediately struck in the eye by a tennis ball Abrenica had hit toward her.   Abrenica did not intend to hit her with the ball.

Solano sued Abrenica and the Fallbrook Tennis Club for negligence and premises liability.²  Abrenica filed an answer in which he raised assumption of the risk as an affirmative defense and later moved for summary judgment on the ground the doctrine of primary assumption of the risk barred Solano's action against him.   The court granted Abrenica's motion, noting it was undisputed that Abrenica did not intentionally hit Solano.   The court concluded:

“[B]eing hit by a carelessly served tennis ball while on the tennis court is a risk inherent to the game of tennis.   The fact that the practice session in which [Solano] and her teammates were involved had ended before the moment [Solano] was hit by the tennis ball is irrelevant․   It is undisputed that [Solano] and her teammates were all on the tennis court at the time of impact and the events that [led] up to [Solano's] injury show that the accident was a risk inherent to the game of tennis.”

DISCUSSION

 On appeal from a ruling on a motion for summary judgment, the appellate court conducts its own independent review of the moving and opposition papers and applies the same standard as the trial court in determining whether the motion was properly granted.  (California Aviation, Inc. v. Leeds (1991) 233 Cal.App.3d 724, 730-731, 284 Cal.Rptr. 687.)

Primary Assumption of the Risk Does Not Bar Solano's Negligence Action Against Abrenica

In Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, the California Supreme Court distinguished primary assumption of the risk from secondary assumption of the risk.   Citing Knight, Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 45 Cal.Rptr.2d 855 stated:  “ ‘Secondary assumption of the risk [arises] where a defendant breaches a duty of care owed to the plaintiff but the plaintiff nevertheless knowingly encounters the risk created by the breach.   Secondary assumption of the risk is not a bar to recovery, but requires the application of comparative fault principles․'  [Citation.]”

 “Primary assumption of risk arises where a plaintiff voluntarily participates in an activity or sport involving certain inherent risks;  primary assumption of the risk does bar recovery because no duty of care is owed as to such risks․   The existence and scope of a defendant's duty of care in the primary assumption of the risk context ‘is a legal question which depends on the nature of the sport or activity ․ and on the parties' general relationship to the activity, and is an issue to be decided by the court, rather than the jury.’ (Knight, supra, at pp. 313, 11 Cal.Rptr.2d 2, 834 P.2d 696, italics in original.)”  (Connelly v. Mammoth Mountain Ski Area, supra, 39 Cal.App.4th at pp. 11-12, 45 Cal.Rptr.2d 855.)

Knight concluded “a participant in an active sport breaches a legal duty of care to other participants-i.e., engages in conduct that properly may subject him or her to financial liability-only if the participant intentionally injures another [participant] or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.”   (Knight v. Jewett, supra, 3 Cal.4th at p. 320, 11 Cal.Rptr.2d 2, 834 P.2d 696, fn. omitted.)  Knight reasoned that participants in sporting activities should not be held liable for their ordinary careless conduct even if such conduct violates a rule of the game, as “imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule.”  (Id. at p. 319, 11 Cal.Rptr.2d 2, 834 P.2d 696, italics in original.)

A. The parties' relationship to the sport or activity

Abrenica contends his relationship to the activity in question (tennis practice) was that of a coparticipant.   Therefore, under Knight, he cannot be held liable because his conduct was neither intentional nor so reckless as to be totally outside the range of the ordinary activity involved in the sport.

 We disagree with Abrenica's analysis.   Although Abrenica was “participating” in tennis activity when he served the ball that hit Solano in the eye, Solano was not a coparticipant in that activity.  Knight instructs that courts must look to the relationship of both parties to the sport or activity in question, not just that of the defendant.  (Knight v. Jewett, supra, 3 Cal.4th at p. 309, 11 Cal.Rptr.2d 2, 834 P.2d 696, italics added.)   At the time of the accident, Solano's relationship to the activity in which Abrenica was engaged was that of a nonparticipant who was unaware that any such activity was occurring or about to occur.   Thus, the issue here is not the duty owed by a participant to a co participant in a particular sporting activity, but the duty owed by a participant to a non participant who is unaware of the activity.

 Even if Solano could be deemed a coparticipant in Abrenica's practice serve by virtue of being on the court and having just completed a practice session with him, there is a triable issue of fact as to whether Abrenica breached the limited duty owed to coparticipants in a sporting activity to refrain from reckless conduct totally outside the range of the ordinary activity involved in the sport.  (Knight v. Jewett, supra, 3 Cal.4th at p. 320, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   Although serving is obviously within the ordinary range of tennis activity, a trier of fact could reasonably find Abrenica's act of serving a ball directly at Solano without adequate warning, after the practice session had undisputedly ended and while she was at the net and turned away from him, was totally outside the range of the ordinary activity involved in tennis.

B. Nature of the sport or activity

 Abrenica argues he owed Solano no duty of care because being hit by a carelessly served ball is an inherent risk of playing tennis.   However, Solano was not playing tennis when she was hit;  she was in the process of leaving the tennis court after a practice session had ended.   Although her presence on the court after the close of the practice session may have posed an inherent risk that she might be struck by an errant ball from another court, being struck by a ball served by a teammate on her own court was not an inherent risk of her exiting that court after the close of the practice session when all play on the court had ceased.

The instant case is similar to Yancey v. Superior Court (1994) 28 Cal.App.4th 558, 33 Cal.Rptr.2d 777, in which the plaintiff was struck in the head by a discus thrown by the defendant during a college physical education class.   The plaintiff had walked onto the field to retrieve the discus she had just thrown when the defendant threw his discus without first observing the field or warning the plaintiff that he was about to throw.  (Id. at p. 561, 33 Cal.Rptr.2d 777.)   Reversing the trial court's order granting the defendant's motion for judgment on the pleadings based on primary assumption of the risk, Yancey noted that the rationale behind Knight 's rule that participants in sports have a limited duty focuses on two inquiries:  “First, is the careless conduct of participants an inherent risk of the sport?   Second, will imposition of a legal duty, with potential liability, alter the nature of the sport or chill participation in it?”  (Id. at p. 565, 33 Cal.Rptr.2d 777.)

Yancey noted that while the risk that a discus will hit someone in the general area of play is an inherent risk of discus throwing, the issue posed by the alleged facts of that particular case was “much more specific-i.e., is the careless conduct of a participant in throwing the discus without first ascertaining the target area is clear an inherent risk of the sport?”   (Yancey v. Superior Court, supra, 28 Cal.App.4th at p. 565, 33 Cal.Rptr.2d 777.)  Yancey concluded it was not.  (Ibid.) Yancey reasoned that requiring discus throwers to check the target area before throwing would not alter or destroy the inherent nature of discus competition, and imposing legal liability on a participant for injuries caused by his or her failure to check the target area before throwing would not chill vigorous participation in the sport.  (Id. at p. 566, 33 Cal.Rptr.2d 777.)

Just as the careless conduct of a discus thrower in throwing the discus without first ascertaining that the target area is clear is not an inherent risk of discus competition, the careless conduct of a tennis player in serving a ball directly at a teammate or other participant without warning after a practice session has ended and all tennis activity on the court has ceased is not an inherent risk of the sport of tennis.   Because Solano was no longer participating in tennis activity when Abrenica decided to hit a practice serve, Abrenica owed her a duty to ascertain that she was aware the serve was coming before hitting the ball.   The doctrine of primary assumption of the risk does not bar Solano's negligence action against Abrenica.

DISPOSITION

The judgment is reversed.   The court is directed to vacate the order granting Abrenica's motion for summary judgment and enter a new order denying that motion.   Solano is awarded her costs on appeal.

I respectfully dissent.   Solano was injured when struck by a tennis ball hit by her partner as she was walking parallel to the net and across the court to exit the playing area.   The risk of being hit by a tennis ball while on a tennis court would certainly seem to be an inherent risk of participating in the sport of tennis.   Yet the majority finds Solano's claim is not barred by the doctrine of primary assumption of the risk, apparently on dual grounds.

First, the majority asserts that Solano and Abrenica were not coparticipants in the sport at the time of the injury because, although Abrenica was still practicing, Solano was no longer participating in the sport because she had concluded the practice session, picked up some balls, and was intending to leave the court unaware that her former partner was about to serve a ball in her direction.   Therefore, the reasoning goes, the duty is that owed by a participant in the sport to a nonparticipant.

I believe that this analysis of the respective parties' “participation” in the sport is flawed since its result is to put Solano in the category of a spectator rather than a participant.   Participation in the sense we are discussing here does not end when the practice or playing of the game ends, but rather when Solano leaves the playing area.   Since Solano was not only in the playing area but still on the practice court, I cannot accept the conclusion that she is no longer “participating” on the basis that it was her intent to leave the court area and that she was unaware of the intent of another player to continue the practice.   Until the intent to leave manifests itself with her departure from the zone of danger, she remains a participant.

Secondly, the majority argues that even if the parties were coparticipants, there exists a triable issue of fact as to whether Abrenica breached “the limited duty owed to coparticipants in a sporting activity to refrain from reckless conduct totally outside the range of the ordinary activity involved in the sport.”  (Maj. opn. at p. 884.) In other words, applying the standard set forth in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, the majority concludes that a trier of fact might reasonably find that Abrenica's act of serving the ball without an adequate warning in the circumstances here was reckless.   I respectfully disagree with that conclusion.   Abrenica's act here certainly amounted to negligence and carelessness, but I do not believe it is “totally outside the range of the ordinary activity” on a tennis court.  (Maj. opn. at p. 884.) I believe the majority's conclusion here is undermined by its concession that at the time of the accident, there remained an inherent risk to Solano that she might be struck by an errant ball from another court, but no such risk existed with respect to a ball served by her teammate.   I think the risk to the player on the tennis court is being hit by a tennis ball from any direction or court.

The majority likens this case to the situation presented in Yancey v. Superior Court (1994) 28 Cal.App.4th 558, 33 Cal.Rptr.2d 777, where a discus thrower was injured while retrieving her previously thrown discus when a subsequent thrower tossed his discus without first determining that the field was clear, i.e., without seeing the plaintiff.   This is a very different situation.   Being hit by a discus is not, in my view, an inherent risk of competing in the sport.   Without knowing more about the rules in place for discus throwers, I do not know whether the matter is simply a comparative negligence case which the plaintiff was negligent in going out to retrieve the discus at that particular time or whether it is simply a matter of negligence on the part of the subsequent thrower who threw his discus without looking to see if the field was clear.   In short, I do not think that situation involves the doctrine of primary assumption of risk at all.   On the other hand, the risk of being struck by a tennis ball while on a tennis court is certainly an inherent risk of playing tennis.

I would affirm the summary judgment.

FOOTNOTES

FOOTNOTE.  

1.   Solano's notice of appeal states the appeal is from the court's order granting summary judgment, which is a nonappealable order.   (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 882, fn. 1, 257 Cal.Rptr. 338.) In the interest of the orderly administration of justice, we construe the notice of appeal liberally in favor of its sufficiency (Cal. Rules of Court, rule 1(a)) and interpret it to apply to the judgment rather than the nonappealable order granting summary judgment.  (Vibert v. Berger (1966) 64 Cal.2d 65, 67-68, 48 Cal.Rptr. 886, 410 P.2d 390.)

2.   Although Solano's complaint names Fallbrook Tennis Club as a defendant, the record contains no indication of the Tennis Club's involvement in the litigation.   The Tennis Club is not a party to this appeal and is not mentioned in the judgment.

MAY, J.* FN* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

KREMER, P.J., concurs.